Illinois Official Reports 

Appellate Court

Madison v. City of Chicago, 2017 IL App (1st) 160195

Appellate Court 

Caption

MARY MADISON, Plaintiff-Appellant, v. THE CITY OF 

CHICAGO, Defendant-Appellee.

District & No. First District, First Division

Docket No. 1-16-0195

Filed June 26, 2017

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 15-L-7725; the 

Hon. John P. Callahan, Jr., Judge, presiding.

Judgment Affirmed in part and reversed in part.

Counsel on

Appeal

Jordan T. Hoffman, of Chicago, for appellant.

Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth 

Solomon, Myriam Zreczny Kasper, and Julian N. Henriques, Jr., 

Assistant Corporation Counsel, of counsel), for appellee.

Panel JUSTICE MIKVA delivered the judgment of the court, with opinion.

Presiding Justice Connors and Justice Simon concurred in the 

judgment and opinion.
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 OPINION 

¶ 1 We are asked in this appeal to consider whether the one-year limitations period in the Local 

Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) 

(745 ILCS 10/1-101 et seq. (West 2010)) bars the plaintiff’s claim for wrongful demolition. 

We hold that it does not and reverse the trial court’s dismissal of that claim on statute of 

limitations grounds. We affirm the dismissal of plaintiff’s other claims.

¶ 2 BACKGROUND

¶ 3 The complaint in this case alleged that, on July 29, 2010, the City of Chicago (City) 

wrongfully demolished a building in which plaintiff Mary Madison had a beneficial interest. 

Ms. Madison filed her lawsuit against the City five years later, on July 29, 2015, and alleged 

four counts: count I for wrongful demolition under section 1-4-7 of the Illinois Municipal Code 

(65 ILCS 5/1-4-7 West 2010)) and counts II through IV, respectively, for an unlawful taking or 

inverse condemnation, negligence, and conversion. 

¶ 4 The City moved to dismiss Ms. Madison’s complaint, arguing that each of her claims was 

barred by the one-year limitations period in the Tort Immunity Act (745 ILCS 10/8-101(a) 

(West 2010)). Ms. Madison responded that section 2-101(e) of the Act (745 ILCS 10/2-101(e) 

(West 2010)) exempted her demolition claim from the Act’s provisions and that her other 

claims were timely because they were derivative of her wrongful demolition claim. Ms. 

Madison argued that the applicable limitations period was therefore the five-year period set 

forth in section 13-205 of the Code of Civil Procedure (Code) (735 ILCS 5/13-205 (West 

2010)). 

¶ 5 On December 16, 2015, the trial court granted the City’s motion. Ms. Madison timely filed 

her notice of appeal on January 15, 2016. This court has jurisdiction pursuant to Illinois 

Supreme Court Rules 301 and 303, which govern appeals from final judgments entered by the 

circuit court in civil cases. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); 303 (eff. Jan. 1, 2015). 

¶ 6 ANALYSIS

¶ 7 The issue before us is whether to apply the general five-year limitations period “to recover 

damages for an injury done to property *** and all actions not otherwise provided for” (735 

ILCS 5/13-205 (West 2010)) or the one-year limitations period in the Tort Immunity Act (745 

ILCS 10/8-101(a) (West 2010)). Ms. Madison argues that her claim for wrongful demolition is 

exempted from the Act’s statute of limitations by section 2-101(e) of the Act. 

¶ 8 Section 2-101 provides: 

“Nothing in this Act affects the right to obtain relief other than damages against a local 

public entity or public employee. Nothing in this Act affects the liability, if any, of a 

local public entity or public employee, based on: 

 a). Contract; 

 b). Operation as a common carrier; and this Act does not apply to any entity 

organized under or subject to the ‘Metropolitan Transit Authority Act’ [(70 ILCS 

3605/1 et seq. (West 2010))], approved April 12, 1945, as amended; 

c). The ‘Workers’ Compensation Act’ [(820 ILCS 305/1 et seq. (West 2010))], 

approved July 9, 1951, as heretofore or hereafter amended; 
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 d). The ‘Workers’ Occupational Diseases Act’ [(820 ILCS 310/1 et seq. (West 

2010))], approved July 9, 1951, as heretofore or hereafter amended; 

 e). Section 1-4-7 of the ‘Illinois Municipal Code’, approved May 29, 1961, as 

heretofore or hereafter amended. 

f). The ‘Illinois Uniform Conviction Information Act’ [(20 ILCS 2635/1 et seq.

(West 2010))], enacted by the 85th General Assembly, as heretofore or hereafter 

amended.” 745 ILCS 10/2-101 (West 2010). 

¶ 9 Referenced in subsection (e), section 1-4-7 of the Illinois Municipal Code provides liability 

for injury caused by wrongful demolition. 65 ILCS 5/1-4-7 (West 2010). The trial court here 

rejected Ms. Madison’s argument that, under subsection (e), her claim for wrongful demolition 

was exempt from the shorter limitations period of the Tort Immunity Act. The trial court relied 

on our decision in Hapeniewski v. City of Chicago Heights, 147 Ill. App. 3d 528, 531 (1985) 

(Hapeniewski I), vacated, 484 U.S. 806 (1987), in which we held that demolition claims were 

subject to the Tort Immunity Act limitations period, despite the language in 2-101(e). We 

begin, as the trial court did, with our decision in Hapeniewski and trace the law on this issue as 

it has developed since then. 

¶ 10 In Hapeniewski I, we reasoned as follows: 

“Statutes of limitations are generally considered to affect the remedy only and not a 

substantive right. [Citation.] Statutes of limitations affect the remedy by limiting the 

period within which legal action may be brought or remedies may be enforced; they bar 

the right to sue for recovery but do not extinguish the underlying obligation. [Citation.] 

Because statutes of limitations generally do not affect substantive rights, we conclude 

that the word ‘liability’ used in section 2-101 does not refer to the statute of limitations 

and, therefore, suits brought under section 1-4-7 are not exempted from the *** statute 

of limitations in the Tort Immunity Act.” Hapeniewski I, 147 Ill. App. 3d at 531. 

¶ 11 To reach this result, we had to distinguish Hecko v. City of Chicago, 25 Ill. App. 3d 572, 

578 (1975), in which we had already held that the statutory notice requirements of the Tort 

Immunity Act did not apply to a demolition claim. We reasoned in Hecko that section 2-101(e) 

of the Act was intended to “eliminate governmental immunity” in demolition actions. 

(Emphasis added.) Id. at 578. We distinguished Hecko in Hapeniewski I by treating the notice 

provision of the Act as substantive and the statute of limitations as procedural. Hapeniewski I, 

147 Ill. App. 3d at 531. 

¶ 12 Although Hapeniewski I was vacated by the United States Supreme Court, later decisions 

in the case did not disturb our original determination that the Tort Immunity Act’s shorter 

statute of limitations applied to wrongful demolition claims. The issue appealed to the 

Supreme Court was whether the Act’s shorter limitations period also applied to the building 

owner’s federal civil rights action. The Court remanded the case to us for further consideration 

of that aspect of our decision in light of its own recent precedent. Hapeniewski v. City of 

Chicago Heights, 484 U.S. 806 (1987). Although our previous judgment was vacated, we did 

not disturb our initial analysis in Hapeniewski I regarding the limitations period for a 

demolition claim (see Hapeniewski v. City of Chicago Heights, 169 Ill. App. 3d 945 (1988) 

(Hapeniewski II)). Thus, both parties and other courts have continued to follow it. 

¶ 13 The distinction that the first district in Hapeniewski I made between substance and 

procedure under section 2-101 of the Tort Immunity Act was adopted by the third district in 
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Slaughter v. Rock Island County Metropolitan Mass Transit District, 275 Ill. App. 3d 873 

(1985), and by the fifth district in Cooper v. Bi-State Development Agency, 158 Ill. App. 3d 19 

(1987), and McClintock v. Bi-State Development Agency, 228 Ill App. 3d 382 (1992). In 

Cooper the court held that the defendant, a public carrier, was entitled to the notice that was 

then required under the Tort Immunity Act, despite the language of subsection (b) of section 

2-101. The court reasoned: 

“Defendant, as a public carrier, owes its passengers the highest degree of care in

contrast to the lower standards of care applicable to other public entities. [Citation.] By 

providing that nothing in the Tort Immunity Act affects defendant’s liability based 

upon operation as a common carrier, defendant is not ‘exempt’ from the Act. This 

provision preserves the standard of care to which defendant must adhere in order to 

avoid liability. Once notice is given, the liability of defendant as a common carrier is 

unaffected by the Act.” Cooper, 158 Ill. App. 3d at 24-25.

In Slaughter and in McClintock, the courts followed the reasoning of Cooper and applied the

one-year limitations period and the notice provision of the Tort Immunity Act to actions 

against a metropolitan mass transit district. However, Cooper and Slaughter expressly rejected 

the first district’s distinction between the notice and statute of limitations provisions in the Act, 

holding instead that both provisions were procedural and therefore applied to public entities 

and public employees, even as to the enumerated categories of claims that were exempted from 

the “substantive” protection of the Act under section 2-101. Cooper, 158 Ill. App. 3d at 25;

Slaughter, 275 Ill. App. 3d at 875. 

¶ 14 After these appellate court decisions, our supreme court decided Raintree Homes, Inc. v. 

Village of Long Grove, 209 Ill. 2d 248 (2004). There, the plaintiffs sought a declaration that the 

Village of Long Grove did not have the authority to pass an ordinance requiring the plaintiffs 

to pay impact fees when they applied for building permits. Raintree Homes, 209 Ill. 2d at 251. 

The trial court had dismissed the claim on the basis that it was barred by the one-year statute of 

limitations in the Tort Immunity Act. Id. Plaintiffs appealed, arguing that their claim fell 

outside the scope of the Act because of the first sentence in section 2-101, which states: 

“Nothing in this Act affects the right to obtain relief other than damages against a local public 

entity or public employee” (745 ILCS 10/2-101 (West 2010)). Raintree Homes, 209 Ill. 2d at 

254-55. Our supreme court held: “Plaintiffs’ claim is an action which seeks ‘relief other than 

damages,’ as set forth in the first sentence of section 2-101, and is, therefore, excluded from the 

Act.” Id. at 256 (quoting 745 ILCS 10/2-101 (West 2002)). The court made no mention of the 

distinction between substance and procedure that was relied upon in Hapeniewski I and the 

other cases cited above. And although Raintree Homes was about whether the Act applied to a 

claim in which the plaintiffs sought “relief other than damages,” our supreme court painted 

with a seemingly broad brush, looking at all of the “enumerated exceptions” in section 2-101 

together—including the one for demolition actions set out in 2-101(e)—in reaching its holding 

that section 2-101 created an exclusion from the Tort Immunity Act. Raintree Homes, 209 Ill. 

2d at 254-56. 

¶ 15 After Raintree Homes was decided, appellate courts abandoned the distinction between 

substance and procedure relied on in earlier cases and treated the claims listed under section 

2-101 as simply “excluded” from any of the protections of the Tort Immunity Act. 

¶ 16 In the first of these cases to be decided, Harvest Church of Our Lord v. City of East 

St. Louis, 407 Ill. App. 3d 649, 654 (2011), the court relied on Raintree Homes as follows: 
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“[I]n Raintree Homes, Inc., the supreme court answered in the affirmative the precise 

question we are asked here: whether section 2-101 of the Tort Immunity Act operates 

to exclude the enumerated actions from the time limitation set forth in section 8-101(a) 

of the Tort Immunity Act. We are thus bound to follow its decision.” 

¶ 17 Other decisions followed Harvest Church. See Ballinger v. City of Danville, 2012 IL App 

(4th) 110637, ¶ 17; Collins v. Town of Normal, 2011 IL App (4th) 100694, ¶ 20; United 

Airlines v. City of Chicago, 2011 IL App (1st) 102299, ¶ 8. In Collins, Justice Steigmann 

specially concurred, agreeing with his colleagues that Raintree Homes required the result that 

the court reached but urging our supreme court to reconsider the matter and distinguish 

between the application of substantive and procedural provisions of the Act to the types of 

claims listed in section 2-101. Collins, 2011 IL App (4th) 100694, ¶¶ 27-28 (Steigmann, J., 

specially concurring). The City in this case acknowledged at oral argument that it was aware of 

no appellate court cases decided after Raintree Homes in which a court applied the distinction 

between substance and procedure to any claims listed in section 2-101 of the Act. 

¶ 18 The trial court here relied on Hapeniewski I and the other cases decided prior to Raintree 

Homes. The City asks us to affirm on the basis that those cases rest on a better understanding of 

the statutory language and because our supreme court in Raintree Homes did not decide the 

issue presented here. Ms. Madison asks us to reverse, arguing that we are required to do so by 

the reasoning and holding in Raintree Homes. We agree with Ms. Madison that section 2-101 

exempts her demolition claim from the Act, including its one-year limitation period. 

¶ 19 In Raintree Homes, our supreme court treated all of the exceptions in section 2-101 

together, making no distinction between the first sentence of section 2-101 and the second 

sentence that lists specific types of claims; our supreme court viewed the claim before it as 

“excluded” from the Act and did not qualify that exclusion based on a review of whether the 

provision of the Act at issue was substantive or procedural. Raintree Homes, 209 Ill. 2d at 

254-56. Even Justice Steigmann, who disagreed with the result his colleagues reached in 

Collins, agreed that Raintree Homes required courts to abandon the old distinction between 

substance and procedure. Collins, 2011 IL App (4th) 100694, ¶¶ 27-28 (Steigmann, J., 

specially concurring.) 

¶ 20 All that the City can offer in response to this is that the enumerated exceptions listed in 

section 2-101, including subsection (e), referencing demolition claims, were not the specific 

provisions of the Act that the court in Raintree Homes was asked to interpret. That is correct. 

However, where our supreme court makes a pronouncement, even where it is not essential to 

the disposition of the case, such a statement is either judicial dictum, which is entitled to “much 

weight,” or obiter dictum, which can be “binding in the absence of a contrary decision of that 

court.” (Internal quotation marks omitted.) Exelon Corp. v. Department of Revenue, 234 Ill. 2d 

266, 278-82 (2009). So we are surely not at liberty to simply disregard our supreme court’s 

statements in Raintree Homes about section 2-101 creating an exclusion from the Act. 

¶ 21 Even if we are not bound by Raintree Homes to reject the old distinction between 

procedure and substance, our own examination of the statutory language in section 2-101 

confirms that the distinction is not supported. The relevant language of the statute is: “Nothing

in this Act affects the liability, if any, of a local public entity or public employee, based on: *** 

(e). Section 1-4-7 of the ‘Illinois Municipal Code’, approved May 29, 1961, as heretofore or 

hereafter amended.” (Emphases added.) 745 ILCS 10/2-101 (West 2010). The language is 

broad. The legislature used the words “nothing” and “affects,” where it might have simply said 
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that the Tort Immunity Act “does not determine the liability, if any, of a local public entity or 

public employee” for claims of the types listed. If employed by the legislature, this more 

limited language might have suggested that section 2-101 provides a limited exemption, 

affecting only substantive rights and duties. The broad language the legislature instead chose 

suggests that its intent was to ensure that “nothing” in the Act—including the Act’s shorter 

limitations period—could “affect” those types of claims. A plaintiff’s claim is certainly 

“affected” if it is barred as untimely.

¶ 22 Finally, the law is well-settled that the Act “is in derogation of the common law and must 

be strictly construed against the local government entity.” (Internal quotation marks omitted.) 

Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 158 (1995). So to the extent that section 

2-101 is unclear, we must construe it against the City and in favor of allowing claimants the 

longer limitations period that the legislature has provided for claims outside of the protections 

of the Act. 

¶ 23 The City makes two statutory construction arguments, both of which we reject. First, the 

City argues that subsection (b) of section 2-101 supports a distinction between substance and 

procedure because it reflects the language that the legislature used when it wanted to create the 

complete exemption from the Tort Immunity Act that Ms. Madison argues for here. The 

second part of subsection (b) provides: “and this Act does not apply to any entity organized 

under or subject to the ‘Metropolitan Transit Authority Act’, approved April 12, 1945, as 

amended.” The City’s argument, based on the analysis in Slaughter, is that this blanket 

exception is an example of “the precise terms the General Assembly uses when it means to 

exempt a claim from all the provisions of the Tort Immunity Act.” According to the City, the 

fact that this blanket exemption appears only in subsection (b) means that there is no “blanket 

exception” for the other claims listed in section 2-101, including the one in subsection (e) for 

wrongful demolition claims. 

¶ 24 This argument reads too much into the language used in subsection (b). Subsection (b) 

contains two exemptions. The first is for “liability” “based on” “operation as a common 

carrier” and the second is for “any entity organized or subject to the Metropolitan Transit 

Authority Act.” As our supreme court has recognized, the language in the second clause is a 

“specific exclusion of the CTA from the Tort Immunity Act.” (Emphasis added.) Fujimura v. 

Chicago Transit Authority, 67 Ill. 2d 506, 514 (1977). Unlike the exemptions for types of 

claims listed in section 2-101, the exemption in the second part of subsection (b) is for a 

specific defendant. We do not find that the differences in the language used to articulate those 

exemptions compels the conclusion that one exemption is broader than the other or that, except 

for the CTA exemption, only the substantive protections afforded by the Act are referenced in 

section 2-101. 

¶ 25 The City’s second argument is that section 8-101 of the Tort Immunity Act, which sets out 

the one-year statute of limitations (745 ILCS 10/8-101 (West 2010)), was amended in 2003 in 

a manner consistent with the existence of a distinction between substance and procedure. This 

argument has no merit, once we consider the reason for that 2003 amendment. 

¶ 26 The amended provision that the City relies on is subsection (b) of section 8-101, relating to 

claims arising out of patient care, and states as follows: 

“(b) No action for damages for injury or death against any local public entity or 

public employee, whether based upon tort, or breach of contract, or otherwise, arising 

out of patient care shall be brought more than 2 years after the date on which the 
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claimant knew, or through the use of reasonable diligence should have known, or 

received notice in writing of the existence of the injury or death for which damages are 

sought in the action, whichever of those dates occurs first, but in no event shall such an 

action be brought more than 4 years after the date on which occurred the act or 

omission or occurrence alleged in the action to have been the cause of the injury or 

death.” 745 ILCS 10/8-101(b) (West 2010). 

¶ 27 The City’s argument is that the mention in this amended provision of “breach of contract” 

actions “demonstrates an understanding that such actions are still subject to section 8-101’s 

limitations provisions, even though section 2-101(a) renders the substantive provisions of the 

Act inapplicable to them.” However, the legislative history reveals that the stated purpose for 

this amendment was to make the limitations period applicable to claims for medical 

malpractice against hospitals and doctors uniform, regardless of whether a plaintiff was treated 

at a private or a public facility. See 93d Ill. Gen. Assem., House Proceedings, Apr. 15, 2003, at 

4 (statements of Representative Hultgren) (“And what this does is it address[es] iniquity [sic] 

... inequity in the law right now where if someone goes to a ... receives medical care from a 

public institution, they only have a one-year statute of limitations ***. If they go to a private 

institution it’d be a two year. What this is doing is making that all uniform.”).

¶ 28 The 2003 amendment was a direct response to our supreme court’s decision in Tosado v. 

Miller, 188 Ill. 2d 186, 196 (1999), holding that medical malpractice actions against a county 

hospital and its physician were subject to the one-year limitations period of the Act, rather than 

the two-year limitations period that applied generally to medical malpractice. See 93d Ill. Gen. 

Assem., Senate Proceedings, Mar. 20, 2003, at 54 (statements of Senator Righter) (noting that 

the amendment arose from a recent supreme court case). The amendment was “designed to 

level the playing field for patients in Illinois regardless of whether they may be in a public or 

private hospital. [The amendment] would make it two years across the board.” Id. at 53-54. To 

accomplish this, the 2003 amendment used the identical language used in section 13-212(a) of 

the Code, establishing a two-year limitations period for medical malpractice claims against 

physicians or hospitals generally. See 735 ILCS 5/13-212(a) (West 2002). That provision also 

states that it applies to actions arising out of patient care, “whether based upon tort, or breach 

of contract, or otherwise.” Id. The City offers us no reason to believe that the inclusion of that 

established language in the 2003 amendment to section 8-101(b) of the Act was in any way an 

endorsement by the legislature of the distinction between substance and procedure that the City 

wants us to recognize. Rather, it was plainly the result of the legislature’s desire to ensure that 

the identical limitations period would apply to all claims arising out of patient care, regardless 

of whether the defendant hospital was a public or private institution. 

¶ 29 Finally, the City argues that, even if the demolition claim was timely, Ms. Madison’s other 

three claims are not. We agree. Ms. Madison suggests, with no citation to authority, that her 

claims for unlawful taking or inverse condemnation, negligence, and conversion fall outside of 

the scope of the Tort Immunity Act because they are “derivative” of the demolition claim and 

therefore also exempted by section 2-101. Ms. Madison provided no basis, in either her brief or 

when specifically asked about this at oral argument, for treating claims that are not listed in 

2-101 as outside of the Tort Immunity Act because they are “derivative” of claims that are 

listed. We affirm the dismissal of these claims. 
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¶ 30 CONCLUSION

¶ 31 For the foregoing reasons, we reverse the dismissal of count I for wrongful demolition, 

affirm the dismissal of counts II through IV, and remand for further proceedings in accordance 

with this opinion.

¶ 32 Affirmed in part and reversed in part.